[2025] EWCA Civ 1211

It is common ground that there is no case that has authoritatively determined the question raised by Ground 1. Certain textbooks have adopted a position on it, and we were referred to authorities where, although the point did not arise for decision, something was said about it.

CGC referred to Megarry & Wade, The Law of Real Property, 10^th ed. (2024) at §10-49, which contrasts the position under s.53(1)(c) with s.53(1)(b) “where the signature of an agent is not enough”. The two cases there cited, however, provide little support for this proposition.

The first case cited is Tierney v Wood (1854) 19 Beav. 330 (“Tierney”). Mr Tierney held land on a resulting trust for Mr Wood. Mr Wood sought – by a paper addressed to Mr Tierney – to declare a trust over the land after his death for his wife, for her life, and then for his offspring. All that was decided in that case was that pursuant to s.7 of the Statute of Frauds the new trust, declared by Mr Wood, had to be evidenced by writing by him and not by Mr Tierney. That was because Mr Wood, as the holder of the beneficial interest in the land, was “the person, by law, enabled to declare the trust” over that beneficial interest. The case said nothing in terms as to the position if the necessary writing had been provided by someone acting as Mr Wood’s agent.

Mr Grant submitted that the case in fact supported the appellants’ argument, relying on the following sentence in the judgment of Sir John Romilly MR:

“A declaration of trust in writing, by Tierney, following that of Wood, would therefore have been merely formal, and would have been valid only so far as it followed his instructions, and would have been void to the extent, if any, that it departed from his directions”.

It appears, however, that in this passage Sir John Romilly was referring to the validity of a trust purportedly declared by Mr Tierney, in support of the point he went on to make, that the “fair conclusion to be drawn from these considerations, is that the person to create the trust, and the person who is, by law, enabled to declare the trust are one and the same.” To the extent that he referred to Mr Tierney declaring a trust in writing, it was on the assumption that it “followed” a declaration in writing by Mr Wood. He was not addressing the question whether a written record of the trust signed by an agent of Mr Wood would have complied with s.7 of the Statute of Frauds, and it does not appear that there had been argument presented on that question.

On analysis, therefore, Tierney does not support the proposition stated in Megarry & Wade. It shows only that where a trust is declared by a person who is the beneficial owner of land under a pre-existing trust, then only that beneficial owner can satisfy the need for writing.

The second case cited is Kronheim v Johnson (1877) 7 Ch D 60. That case simply referred to Tierney for the proposition that a trust of a beneficial interest in land must be evidenced by writing by the beneficial owner. On the facts, s.7 of the Statute of Frauds was found not to be satisfied because there was no sufficient writing at all.

Other textbooks relied on by CGC do no more than point out (without citing authority) that, in contrast to s.53(1)(c), s.53(1)(b) contains no provision that the declaration of trust may be signed by an agent: see Lewin on Trusts, 20^th ed, at §3-017; Civil Fraud: Law Practice & Procedure (1^st ed) at §9-014; and Cheshire & Burn’s Modern Law of Real Property (18^th ed) at pp.1010-1011.

Equity and Trusts by Michael Haley and Lara McMurtry (7^th ed), at §4-006 states that, in relation to a company, the document must be signed “by” the company and not merely “on behalf of” the company, citing Hilmi Associates Ltd v 20 Pembridge Villas Freehold Ltd [2010] EWCA Civ 314; [2010] 1 WLR 2750 (“Hilmi”). I deal with that case in greater detail below. For present purposes, I note that it concerned a materially different statutory provision and all that was said about s.53(1)(b) was that it had been cited to the Court as an example of a statutory provision which requires personal signature of a document of a kind relevant to a company (see §17 of the judgment of Lloyd LJ).

The appellants, for their part, referred to Paul S. Davies and Graham Virgo, Equity and Trusts: Text, Cases and Materials, 3^rd ed., at pp.119-120, where the authors adopted the “sensible, practical interpretation” that “some person who is able to declare such transfer” includes an agent. The strongest support for the appellants’ position is found in a chapter provided by Charles Harpum, in Elizabeth Cooke (ed): Modern Studies in Property Law, Vol 1, “Property in an Electronic Age”, at p.12:

“Those who say that an agent cannot make such a declaration point to the fact that in section 53(l)(a) and (c), there is express provision for the particular formal requirements to be executed by an agent who has been authorised in writing. However, both paragraphs (l)(a) and (l)(c) of section 53 require that something is done in writing, and not merely that it should be evidenced in writing. It is therefore unsurprising that there should be an express requirement that, where an agent is to carry out the transaction, he should have to be authorised in writing. In other words, the reason for the express reference to agency in those paragraphs is to require that authority should be given in writing. Section 53(1)(b) merely requires that any declaration of trust be evidenced in writing. The present writer therefore agrees with the view that an agent can declare a trust of land on behalf of his principal if authorised to do so. That agent is ‘some person who is able to declare such a trust’ within the paragraph.”

CGC also referred to three recent authorities which are said to be consistent with its case. None of them contains anything other than a passing reference to the point that an agent’s signature does not count for the purposes of s.53(1)(b), and in none of them was the point the subject of argument and decision.

In the first case, HRH Tessy Princess of Luxembourg v HRH Louis Xavier Marie Guillaume Prince of Luxembourg [2018] EWFC 77, there is a reference to s.53(1)(b), for the proposition that where legal property is already held on trust, it is only the beneficial owner of the property who is able to declare a trust of that beneficial interest (i.e. the point decided in Tierney). CGC relies on the fact that, in quoting the passage from Lewin on Trusts to which I have referred above, MacDonald J, at §68, included the sentence stating that s.53(1)(b) contains no provision that the declaration of trust may be signed by an agent. The point was not in issue in the case, and apart from citing the passage from Lewin, the judge said nothing about it.

In Fish v Sky Apartments 2018 Ltd [2022] EWHC 763, at §51, HHJ Halliwell referred without comment to an observation from an opinion of Counsel provided in the case that notices under s.5 of the Landlord and Tenant Act 1987, had they otherwise been apt to do so, would not have been capable of constituting a declaration of trust pursuant to s.53(1)(b) “because they were signed by an agent”.

In Morton v Morton [2022] EWHC 163, at §100, HHJ Halliwell said, of partnership accounts, that while it was likely they were signed by the partnership accountants, “there is no suggestion that they were signed by the partners themselves so as to satisfy the requirements of s.53(1)(b) for a written declaration of trust.” As HHJ Halliwell recorded in the previous sentence, however, it was not submitted that any of the partnership accounts could per se have satisfied the statutory formalities for any of sub-paragraphs (a) to (c) of s.53(1).

CGC also cited other authorities relating to different statutory provisions, which held that the signature of an agent would not suffice. Since the statutory language in question in those cases is materially different, the cases do not help on this appeal.